Nearly three years after issuing an executive order on the subject, the Trump Administration has finalized the Navigable Waters Protection Rule to narrow the scope of waters subject to federal regulation under the Clean Water Act.
In 2015, the Obama Administration finalized the Clean Waters Rule which generally expanded the jurisdiction of EPA and the Corps of Engineers over “waters of the United States.” The rule was challenged in district and appellate courts throughout the country. After various court rulings, including one by the Supreme Court, the Clean Waters Rule became effective in only about half the states, creating a patchwork of regulation. Upon assuming office, President Trump issued an executive order in which he directed that a new rule be considered which mirrored the more limited jurisdictional view announced by Justice Antonin Scalia in prior rulings. Not surprisingly, the Navigable Waters Protection Rule adopts the narrower view.
There are only four categories of jurisdictional waters under the new rule: the territorial seas and traditional navigable waters; tributaries; lakes, ponds, and impoundments of jurisdictional waters; and adjacent wetlands. To determine the scope, the definitions of these terms are important.
Traditional navigable waters are waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce. Tributaries must be perennial or intermittent in a typical year and are defined as a river, stream, or similar naturally occurring surface water channel that contributes surface water flow directly or indirectly to a jurisdictional water. Lakes, ponds, and impoundments are standing bodies of open water that contribute surface water flow directly or indirectly to a jurisdictional water.
Wetlands must be adjacent to other jurisdictional waters. The term adjacent wetlands means wetlands that abut a jurisdictional water; are flooded by a jurisdictional water in a typical year; are physically separated from jurisdictional waters only by a natural berm, bank, dune, or similar natural feature; or are physically separated from jurisdictional waters by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrologic surface connection, such as through a culvert, flood or tide gate, pump, or similar artificial feature.
The new rule also identifies twelve categories of waters that are not ‘waters of the United States.” These include any waters that are not one of the four categories of jurisdictional waters; groundwater, ephemeral features, and prior converted cropland. The term prior converted cropland is defined for the first time in a rule and means any area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose of making production of an agricultural product possible.
Ditches are also excluded. They are broadly defined as a constructed or excavated channel used to convey water. To be excluded, the ditch must not be a traditional navigable water, a tributary, or be constructed in an adjacent wetlands.
The narrower jurisdictional scope closely follows the opinions written by Justice Scalia, as required under the executive order. According to the agencies, the narrower scope of the new rule is also within the scope of the government’s authority over navigable waters under the Clean Water Act. As with the Clean Water Rule, this new rule will be challenged and the likely result will be the same patchwork of regulation seen previously. Ultimately, though, the Supreme Court will have to decide the appropriate scope of federal jurisdiction.